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Why school administrators were wrong not to punish students who gave the Nazi salute

School officials misunderstood the law and history regarding student free speech rights

Greg Sacra, a resident of Baraboo, Wis., speaks to the city's school board Nov. 12 about a controversial photo of high school students giving what appears to be a Nazi salute on the steps of a local courthouse taken before their prom last spring. (Tim Damos/Baraboo News Republic/AP)

By Kathryn Schumaker

Kathryn Schumaker is the Edith Kinney Gaylord presidential professor in the department of classics and letters at the University of Oklahoma and author of the forthcoming book, "Troublemakers: Students’ Rights and Racial Justice in the Long 1960s."

November 29, 2018

A few weeks ago, a six-month-old photo surfaced on Twitter. It showed dozens of young tuxedo-clad men, most of them white, cheerfully extending their right arms in a Nazi salute.

The photo ignited immediate outrage — but no punishment. The men were identified as current and former students of Baraboo High School in Wisconsin. Despite pressure put on the school district following the photo’s publication, Baraboo Superintendent Lori M. Mueller sent a letter to district parents declaring that none of the young men would be punished by the school. The letter stated that administrators could not “know the intentions in the hearts” of the young men in the photo, and also claimed that the First Amendment barred administrators from taking action.

Mueller’s letter contains a set of contradictory arguments, portraying the students as both incapable of understanding the meaning of the Nazi salute and engaging in protected political speech. Her response echoes arguments that, as abhorrent as racist or anti-Semitic ideas might be, they still deserve constitutional protections, even in public schools.

Those arguments, however, reflect incomplete and misinformed understandings of both history and law, ones that seem always to support the rights of white supremacists. In reality, however, the educational mission of schools has always meant that student speech must not interfere with the regular school day. Even in instances of laudable student protest, the courts have not extended blanket protections to student speech just because it is political in nature.

Free speech protections for student in public schools are firmly rooted in struggles for racial justice. The Supreme Court’s landmark 1969 decision in Tinker v. Des Moines, which declared that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” rested upon lower court rulings in two cases that came from segregated black schools in Mississippi.

In both of these cases, principals punished black students for displaying support for the mass voter registration and education drives of the Freedom Summer campaign. The abduction and murder of civil rights workers James Chaney, Andrew Goodman and Michael Schwerner in Philadelphia, Miss., in June 1964 were the most visible examples of the violence and intimidation faced by activists during Freedom Summer. The discovery of the men’s bodies in early August marked the start of voter registration efforts in Philadelphia, as local people and organizers determined that it would be safer to try to register to vote once national attention turned to the town. Local teenagers, inspired by these efforts but too young to register themselves, decided to demonstrate their support, too.

The same day that local black adults went to the courthouse in an unsuccessful attempt to register to vote, a group of teenagers — including children of the prospective voters — wore buttons emblazoned with slogans, including “One Man, One Vote,” to their high school. The school’s principal told the students to remove the buttons, and he suspended them when they refused.

The resulting lawsuit claimed that the buttons constituted political speech and therefore merited the free speech protections of the First Amendment. This argument was a legal innovation at the time, as courts had deferred to the authority of school administrators to discipline students for whatever reasons they saw fit. The litigation also required students to speak up and testify in court to the sincerity of their beliefs that Jim Crow was wrong.

The U.S. Court of Appeals for the 5th Circuit eventually heard the Philadelphia case, Burnside v. Byars, alongside another case with virtually identical facts from the Mississippi Delta, Blackwell v. Issaquena County. In both cases, students engaged in a protest against Jim Crow were punished for their political expression at school. And in its 1966 ruling, the appeals court declared that the First Amendment protected students in public elementary and secondary schools. Burnside and Blackwell became the foundation for the Supreme Court’s eventual ruling in Tinker v. Des Moines, which centered upon the political expression of students who wore black armbands to protest the Vietnam War.

And yet in Burnside, and later in Tinker, the courts were clear that students’ speech rights are not absolute. Indeed, the court declared in Blackwell v. Issaquena County that the school’s principal had fairly punished students for wearing “One Man, One Vote” buttons because the presence of the buttons had caused a disruption to the regular school day. Students in the Burnside and Tinker cases were only protected because their speech was purely political and not disruptive. The “disruption test” continues to serve as a metric for determining the limit of students’ protected speech.

Cases since Tinker have confirmed that students’ rights to free expression are limited, especially when their speech is not political and violates school rules or disrupts the educational function of the schools. In 1986, the court established that a principal can punish a student for making a lewd remark without running afoul of the First Amendment. In 2007 in Morse v. Frederick, the Supreme Court established that schools can suspend a student for unfurling a banner reading “Bong Hits 4 Jesus,” even though he was not on school property.

Even those Supreme Court justices who advocate for stronger speech protections for students agree that free speech rights in schools should not be absolute. As Justice John Paul Stevens noted in his dissent in Morse, “In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students.”

Is giving a Nazi salute a violation of a “permissible” rule? Is it conduct that is harmful to other students? Such questions should prompt important discussions about education and its relationship to democratic ideals. And yet treating the First Amendment as a trump card forecloses the meaningful discussions we might have about the basic purposes of public schooling. It is not difficult to imagine that students giving Nazi salutes can reasonably be seen as disruptive to the school’s educational function or to argue that they run counter to the ability of schools to provide equal educational opportunities to all students.

Indeed, federal law, building on Supreme Court precedent, prohibits discrimination on the basis of race or religion in public schools. As the court held in Brown v. Board of Education, public education “is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

What the administrators in Baraboo are really afraid of, it seems, is a lawsuit. If parents did decide to sue the district, the case would force the students to reckon with whether the Nazi salute was political expression and the extent to which they are willing to stand behind the gesture in a court of law. If the salute was not political expression, it does not merit special protections of the First Amendment. There is no constitutional right to be a jerk at school.

And if any of these young men choose to assert that the salute represented their sincere political beliefs, they would be faced with the consequences of taking a stand for white supremacy in the marketplace of ideas — a place where the memory of World War II is not so distant as to make the genocidal consequences of Nazi ideology hypothetical. The First Amendment is not a shield against public condemnation of ideas that are antithetical to American democracy.

This is the key difference between the Nazi-saluting students and students who have been punished for kneeling during the national anthem. These students are taking a stand on an important public issue — the killings of unarmed African Americans by police officers — and doing it in a way that is silent and respectful, much like the button-wearing students of Philadelphia or antiwar protests in Des Moines.

Perhaps most troubling about this story are assertions that Baraboo High School is a place where students openly mock and harass their classmates on the basis of race, religion and sexual orientation. Such allegations imply that the photo was not the result of youthful immaturity but instead indicative of a hostile environment at the school, where displays of racism and homophobia are tolerated by administrators. In this context, the Nazi salute looks flat-out sinister — a gesture aimed to intimidate and harass peers because of their race or religion — with far more potential to do harm than the advocacy of marijuana use that was at issue in Morse.

Pretending that such speech deserves special protection and has no effect on the educational experiences of other students ignores that our nation continues to fight a protracted battle to make good on the promise of “liberty and justice for all.”